The New NIW Standard more favorable to Entrepreneurs

National Interest Waiver (NIW)-based immigrant visas are available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Since the economic crisis of 2008, USCIS has expanded the NIW category to make it open to entrepreneurs and job creators.

However, for the last two decades the standard used by USCIS to evaluate an NIW case was taken from a 1998 case, New York State Department of Transportation (NYSDOT):

Has the petitioner shown that the area of employment is of “substantial intrinsic merit.”

Has the petitioner established that any proposed benefit from the individual’s endeavors will be “national in scope.”

Has the petitioner demonstrated that the national interest would be adversely affected if a labor certification were required for the foreign national.

This standard has proved challenging for entrepreneurs.

Fortunately, we can all now breathe a collective sigh of relief that as of December 27, 2016, USCIS has now adopted less restrictive standards for the NIW which seem to be more favorable to entrepreneurs*.

Under the new standard, an NIW may be approved if:

The foreign national’s proposed endeavor has both substantial merit and national importance;

the foreign national is well positioned to advance the proposed endeavor; and

that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.”

“Substantial merit and national importance” – Prong 1

Under the new NIW first prong, merit may be demonstrated in a wide range of areas including “business, entrepreneurialism, science, technology, culture, health, or education.” Showing merit by quantifying economic impact is one way to meet the test, but that it is not required if other evidence of national importance is provided. Another example offered of merit is where there are national or even global implications in a specific field such as those resulting from improved manufacturing processes or medical advances.

The new standard also deliberately avoids focusing on geographic terms. The new standard is instead interested in “broader implications.” Specifically, this passage discussing job-creation points to a much more robust use of the category by entrepreneurs:

Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance. (emphasis added)

“Well positioned to advance the proposed endeavor” – prong 2

To demonstrate this second prong, USCIS will scrutinize the following factors including but not limited to “the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.” Petitioners need only show by a preponderance of the evidence that they are well positioned to advance the proposed endeavor.

“On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification” – prong 3

The third and final criterion is the most important and represents the most far reaching change. USCIS examiners are now directed to balance the interests of having a labor certification process to protect domestic workers against other factors deemed to be in the national interest. USCIS should consider factors such as “whether, in light of the nature of the foreign national’s qualifications of proposed endeavor, it would be impractical either for the foreign national to secure a job offer of or from the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. We emphasize that, in each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.”

What is key here is that unlike NYSDOT, the applicant need not show harm to the national interest if a labor certification is not conducted. In a footnote in the new court case, it is noted that because of the nature of the proposed endeavor, it may be impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his or her own, to secure a job offer from a U.S. employer thus making the labor certification problematic. This observation should greatly improve the outlook for entrepreneurs interested in using the NIW category to pursue a green card.

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